Could the Tennessee legislature move a piece of property from Davidson County into Wilson County?

Subject

Opinion No. 13-08, Constitutional Permissibility of Property Transfer Between Davidson and Wilson Counties, February 1, 2013

Plain-English summary

A state representative asked whether the Tennessee Constitution would permit the General Assembly to authorize the transfer of several parcels of land from Davidson County to Wilson County. The parcels in question were more than 11 miles from the courthouse for the Metropolitan Government of Nashville and Davidson County, the proposed transfer would leave more than 500 square miles within Davidson County, and the governing legislative bodies of both counties had approved the transfer by resolution.

The AG said yes. The constitutional source of the question was Tenn. Const. art. X, § 4, which sets up two numerical limits for changes to county lines: a new county line cannot approach the existing courthouse of any county "from which it may be taken nearer than eleven miles," and the existing county cannot be "reduced to less than five hundred square miles." The opinion explained that although that language was originally written for creating new counties, the Tennessee Supreme Court in Giles County v. Marshall County had applied it to changes to the boundary between existing counties too.

A separate provision of art. X, § 4, requires the consent of two-thirds of voters "in such part taken off" to "form a new County or part thereof." The AG, again following Giles County, said that two-thirds-voter requirement did not apply when one existing county added territory from another existing county. So the Davidson/Wilson transfer did not need a voter referendum, just legislative approval that complied with the 11-mile and 500-square-mile rules.

The opinion also flagged the statutory procedural requirements in Tenn. Code Ann. § 5-2-104: any bill changing county lines must be "accompanied by" an accurate survey and plat showing the proposed change with courses and distances, plus a resolution approved by two-thirds of the county commissioners of every affected county. Without that, the bill is "not in order." The AG cross-referenced Tenn. Att'y Gen. Op. 99-101 for the legislative procedures.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The constitutional rule (11 miles, 500 square miles, two-thirds vote only for new-county creation) has been unusually stable, but the statutory procedural rules in § 5-2-104 and any related provisions have been touched by the legislature from time to time. Anyone advising a county on a proposed boundary change today should confirm the current statutory accompaniment requirements before filing a bill.

Background and statutory framework

Article X, § 4 of the Tennessee Constitution reads, in pertinent part:

No new County shall be established by the General Assembly which shall reduce the County or Counties, or either of them, from which it shall be taken, to less contents than five hundred square miles, nor shall any new County be established containing less than two hundred and seventy five square miles; nor shall any line of such County shall approach the County Courthouse of any old county from which it may be taken nearer than eleven miles . . . . No part of a County shall be taken off to form a new County or part thereof without the consent of two-thirds of the qualified voters in such part taken off.

On its face, that language reads as if it were limited to creating new counties. Giles County v. Marshall County in 1915 broadened the application: the 11-mile and 500-square-mile floors apply equally to changes in the boundary between existing counties. But the two-thirds voter consent requirement is by its terms limited to creating new counties, so it did not block a transfer of territory between existing counties. Successive AG opinions (98-035, 94-049, 83-196) had all applied that framework.

For Davidson/Wilson, the request set up three favorable facts: all of the parcels to be transferred were more than 11 miles from the Davidson County courthouse, the resulting Davidson County would still exceed 500 square miles, and both county legislative bodies had passed resolutions approving the transfer. That satisfied the constitutional limits and the procedural piece in Tenn. Code Ann. § 5-2-104 (which requires two-thirds approval by the county commissioners of "all counties affected"). The AG also noted that the bill itself would need an accurate survey and plat showing the new line with courses and distances.

Common questions

Did the voters of the affected area have to approve the transfer?

No, not under the Tennessee Constitution. The two-thirds voter consent requirement in art. X, § 4, applies only when a new county is being formed. For a transfer between two existing counties, the constitutional check runs through the General Assembly (subject to the 11-mile and 500-square-mile floors) and the procedural check runs through county-commission resolutions.

How does the eleven-mile rule actually work?

The new line drawn between the counties cannot come within 11 miles of the old county's courthouse. In Davidson County, the relevant courthouse was the Metropolitan Government's courthouse. As long as no part of the new Davidson/Wilson boundary intruded within an 11-mile radius of that courthouse, the rule was satisfied.

Why does 500 square miles matter?

Because the constitution doesn't want county boundaries reshaped so dramatically that an existing county becomes too small to function. Reducing a county below 500 square miles isn't allowed. Davidson County had plenty of margin in 2013, so the proposed transfer easily cleared the floor.

What did the bill itself need to include?

Tenn. Code Ann. § 5-2-104 requires that the bill be accompanied by: (1) an accurate survey and plat showing the changes asked for and "giving courses and distances of the county line as it will be left after such change should be made," and (2) a resolution approved by two-thirds of the county commissioners of all counties affected. Without those, the bill is "not in order" and cannot be moved through the legislative process.

What happened to property tax, voter registration, school zoning, and utilities for the transferred parcels?

Those weren't addressed in this opinion. The AG was answering a tightly framed constitutional and procedural question. Practical follow-on issues (which county collects property taxes from the transferred parcels, which school district takes them, voter registration changes) would have been worked out under separate Tennessee law and the terms of any local agreement between Davidson and Wilson Counties.

Citations

• Tenn. Const. art. X, § 4 (county-line constitutional rules)
• Tenn. Code Ann. § 5-2-104 (statutory procedural requirements for changing county lines)
• Giles County v. Marshall County, 181 S.W. 308 (Tenn. 1915) (constitutional floors applied to changes between existing counties; voter-consent requirement limited to new-county creation)
• Tenn. Att'y Gen. Op. 98-035 (Feb. 9, 1998) (alteration of Gibson-Obion County line)
• Tenn. Att'y Gen. Op. 94-049 (Apr. 6, 1994) (county boundaries and municipal secession)
• Tenn. Att'y Gen. Op. 83-196 (Apr. 20, 1983) (county-line alteration)
• Tenn. Att'y Gen. Op. 99-101 (May 5, 1999) (legislative procedures for changing county lines)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-008.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

February 1, 2013

Opinion No. 13-08

Constitutional Permissibility of Property Transfer Between Davidson and Wilson Counties

QUESTION

Would the Tennessee Constitution prohibit the General Assembly from authorizing the transfer of several properties from Davidson County to Wilson County under the following circumstances: the properties sought to be transferred are more than eleven miles from the courthouse for the Metropolitan Government of Nashville and Davidson County, the proposed property transfer would leave more than 500 square miles within Davidson County, and the governing legislative bodies for both counties approve the property transfer by resolution?

OPINION

No. The aforementioned circumstances meet the requirements set forth in the Tennessee Constitution, Article X, Section 4, and therefore the General Assembly, through passage of an act by the Senate and House of Representatives with approval by the Governor, may authorize the transfer of these properties between the counties.

ANALYSIS

The General Assembly has the power to establish counties and to determine and alter county lines, within the specific criteria set forth in Article X, Section 4 of the Tennessee Constitution. Giles County v. Marshall County, 133 Tenn. 414, 181 S.W. 308, 308-09 (1915); see, e.g., Tenn. Att'y Gen. Op. 98-035 (Feb. 9, 1998) ("Alteration of Gibson-Obion County Line to Place City of Kenton Entirely in Gibson County"); Tenn. Att'y Gen. Op. 94-049 (April 6, 1994) ("County Boundaries — Whether Municipality Can Secede from Its County and Join Neighboring County"); Tenn. Att'y Gen. Op. 83-196 (April 20, 1983). In placing property within a different existing county, the General Assembly is constitutionally constrained only by the criteria specified in Article X, Section 4, which provides in pertinent part that "no line of such County shall approach the County Courthouse of any old county from which it may be taken nearer than eleven miles, nor shall such old County be reduced to less than five hundred square miles." Although this language applies to the creation of a new county, it has also been applied to the alteration of the boundary between existing counties. Giles County v. Marshall County, 181 S.W. at 308-09; Tenn. Att'y Gen. Op. 98-035 at 1-2.

The provision of Article 10, Section 4, of the Tennessee Constitution, which specifies that "[n]o part of a County shall be taken off to form a new County or part thereof without the consent of two-thirds of the qualified voters in such part taken off," does not apply when part of an existing county is added to another already existing county. Giles County v. Marshall County, 181 S.W. at 308; Tenn. Att'y Gen. Op. 98-035 at 2.

The request specifies that all of the properties that are proposed to be transferred from Davidson County to Wilson County are more than eleven miles from the courthouse for the Metropolitan Government of Nashville and Davidson County and the transfer of these properties will not cause Davidson County to fall below five hundred square miles in size. Accordingly, the constitutional requirements have been met for the General Assembly to be able to authorize the transfer of these properties between already existing counties.

Notably, in addition to the foregoing requirements of the Tennessee Constitution, Tenn. Code Ann. § 5-2-104 requires:

(a) All applications for legislation changing county lines shall be accompanied by:

(1) An accurate survey and plat, showing the changes asked for, and giving courses and distances of the county line as it will be left after such change should be made; and

(2) A resolution approved by two thirds (2/3) of the county commissioners of all counties affected by such boundary line change.

(b) No bill providing for such change shall be in order unless so accompanied.

These legislative procedures as set forth in the foregoing statute should be followed in regard to any proposed legislation to authorize the transfer of these properties between Davidson and Wilson Counties. See Tenn. Att'y Gen. Op. 99-101 (May 5, 1999) ("Legislative Procedures for Changing County Lines").

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

STEVEN A. HART
Special Counsel

Requested by:

Honorable Darren Jernigan
State Representative
24 Legislative Plaza
Nashville, TN 37243